Independent journalism on fracking, onshore oil and gas and the reactions to it

Legal challenge to council approval of N Yorks fracking

The decision by North Yorkshire County Council to approve plans by Third Energy to frack at Kirby Misperton is to be challenged in court.

Friends of the Earth and members of local residents’ group, Frack Free Ryedale, applied today to the High Court for a judicial review.

On May 23, the council’s planning committee voted by seven to four to approve Third Energy’s application to frack, test and produce gas from its KM8 well for up to nine years. There were 4,375 objections to the application and 36 letters in support.

The groups said they believed the council’s decision was unlawful because it:

Failed properly to assess climate change by not considering the environmental impact of burning gas from KM8 at a nearby power station at Knapton;

Failed to secure long-term financial protection against any environmental damage.

North Yorkshire County Council said this morning:

“North Yorkshire County Council’s planning committee gave proper regard to all material planning considerations before approving the application by Third Energy to undertake fracking for shale gas in the vicinity of Kirby Misperton.”

A spokesperson for Third Energy said:

“Third Energy has not yet seen the applications for judicial review and so cannot comment directly. North Yorkshire Country Council approved Third Energy’s application after an extremely long, thorough investigation and hearing and we have confidence that the council followed all due processes.”

Climate impacts

Friends of the Earth has instructed Leigh Day solicitors and the barrister, David Wolfe, QC, both of whom specialise in judicial reviews.

“Shale gas is a dirty fossil fuel and it is the responsibility of North Yorkshire County Council to require a full assessment of the impact this fracking application would have on the climate. They failed to do that, and this is why we believe the courts need to consider the way that this decision was arrived at by seven councillors in May.”

David Davis, a retired chartered surveyor from the Ryedale village of Hovingham, said:

“Concerned local residents have spent many hours considering the application, submitting evidence and raising their concerns in front of the Planning Committee. Despite all this, the County Council have let the people of North Yorkshire down by failing to address these crucial factors.

“Our only recourse is to challenge this decision in the courts and hope that justice will be served.”

Jackie Cray, a retired vicar from Kirby Misperton, said:

“North Yorkshire County Council has a moral and legal responsibility to ensure against harm to current and future generations.

“We believe that they have failed in that duty in two key areas, climate change as well as making sure that there is enough money to clean up if anything went wrong.

“We call on the High Court to ensure that this crucial decision for our village and the wider population is made lawfully.”

A judicial review is the only challenge open to opponents of a planning permission. But it examines just the way in which a decision was made, not the rights and wrongs of the conclusion reached. If successful, the court can quash a decision.

The Kirby Misperton case will now go the Permission Stage where the High Court will decide whether or not there should be a full hearing. This initial decision is expected to happen in the next few weeks.

Leigh Day and David Wolfe QC represented Frack Free Balcombe Residents Association in its judicial review in November 2014. This failed to overturn the decision by West Sussex County Council to approve plans by Cuadrilla to test the flow of oil at its well in Balcombe.

A judicial review of the approval by Lancashire County Council of Cuadrilla’s monitoring plans at Roseacre Wood has been postponed. A decision on whether to pursue it will be made when the outcome is known of Cuadrilla’s appeals, now expected by October.

This report is part of DrillOrDrop’s Rig Watch project. Rig Watch receives funding from the Joseph Rowntree Reform Trust. More details here

My read and understanding is that the Committee accept (although grudgingly) the Government statement and position that there is adequate technology and regulations in place and review process to adapt and to meet these rules. Although it is very tight. But they did accept shale is compatible if these rules are met.

From your link TW “the CCC report says that without CCS the UK would need to eliminate almost all CO2 from all sectors of the economy by 2050.” – Can you explain why you believe CCS will be available at scale by 2050 or if not how this government is proposing to to eliminate almost all CO2 from all sectors of the economy ? After all this government doesn’t seem very committed to CCS and people like Stephen Tindale are on record as saying fracking is only viable as a bridge fuel *with* CCS

From all reports I read the CCC accept the Government assurance of its capacity to meet these rules and both agree to adjust and revise their policy as the industry developed. The Committee also agree that huge difficulty to estimate these rules and so partial go ahead and let see approach.

1) shale gas will displace declining North Sea gas / imports so net balance doesn’t change
2) if gas demand increases due to increased electricity demand / cold winters it doesn’t make any difference where the extra gas comes from (to global CO2 / methane)
3) Imported gas by nature of distance travelled, process of liquification, mega compression, zillions of extra valves, regulation in country of origin, possible fracking in country of origin (US) will exhibit HIGHER fugitive methane emissions. So from a global context it is better to use gas sourced as close to the usage point as possible
4) Fugitive emissions are irrelevant to this whole discussion. The only way to stop them is to stop using gas / coal / oil / go vegan…. and it is not going to happen anytime soon.

You seem to be missing the point that the CCC are clearly making that unabated use of gas will result in missing our climate change targets. It doesn’t matter diddly squit where it comes from if you can’t fit the power station with CCS (and we can’t, and there isn’t much prospect that we can) .

Fugitive emissions clearly can’t be abated by CCS but they could potentially be reduced at a cost. How an industry with extraction costs estimated between 48p – 84p a therm in the UK and whoelsale value of 34p a therm can meet those costs is an interesting question isn’t it?

John, we will use gas as required until there is something to replace it. Not coming anytime soon. Surely you appreciate this? Even the new nukes seem to be disapearing over the horizon. The CCC report is written in a way which will allow shale gas exploration to get going and even development to take place – if the costs are competitive. As I have said many times before on this BB, if the cost of shale gas is not competitive it won’t happen. So if your numbers are correct and the price of gas stays low there is nothing for you to worry about. I assume you would like a few wells drilled and fracked first to establish reserves and commerciality (to prove your point)? Then the industry will pack it bags and leave. But these forecasts might be wrong – and the price of gas may rise.

CCS is also a red herring as it applies to all gas, wherever it comes from. When it is used in a CCGT to generate electricity the origin of the gas is meaningless.

A few facts might help this debate. Only an applicant can appeal a County Council decision, not those opposed to any particular development. [Hm, that seems fair … ]. The only recourse for those opposed to a development is a Judicial Review. This cannot challenge the decision itself [again, very fair], but only the process by which it was arrived at.
So, this means that people in Yorkshire cannot appeal on the basis that not one of the all-male Committee lives in Ryedale, where the fracking would take place.
Or that 99.2% of respondents opposed the scheme (4,375 to 36 in favour). Or that there was not a single letter of support from any of the villages near the well-site. Or that the number of objections is not considered to be a ‘material objection’ (although had this been a wind farm, I wonder if they would have been?).
They cannot appeal against the fact that numerous local residents and independent experts presented a variety of clear and compelling evidence against fracking, but the Conservative-dominated committee did not even bother to take a single minute to even debate this evidence in the summing up debate (a brazen case of pre-determination, anyone?).
They also cannot appeal against the fact that the Chair of the Committee and the head of Third Energy were obviously mates on first-name terms, or the fact that the same Chairman justified the decision by repeating the company’s assertions that ‘they have been producing gas safely in Yorkshire for 20 years’ – which is not only untrue, but also is irrelevant as we are discussing
And they cannot appeal against the fact that when offered a copy of the Frack Free Ryedale presentation, the Chairman shrugged off the request, saying, ‘I’m not going to have time to read that’ – again indicating that he was only interested in one side of the story and had probably already made up his mind weeks ago.
What they can appeal against is therefore very limited, and relates only to failures in process conducted by the NYCC. Which is what is happening.

Actually there is another option to JR but it has to be undertaken very quickly and before the Planning Permission hard copy is sent to the applicant. I have been involved in this once only, in circumstances similar to those you describe above when a development we opposed was approved by the Planning Committee – we appealed directly in writing to the Secretary of State the same day. The SOS decided that LPA’s Planning Committee may not have acted properly in assessing the application and immediately instructed the LPA not to issue the formal planning permission and that PINS should review the application / process on his behalf. The end result was the SOS refused planning permission based on PINs recommendation, the developer got very upset and the Planning Committee got taught a valuable lesson. There was no appeal by the developer.

Plenty of industries as well as many activities we wouldn’t usually think about produce greenhouse gasses or reduce the planets ability to absorb CO2. It will be interesting to see what the court makes of this; as to whether it would open judicial reviews of anything that creates CO2 or methane or reduces an areas CO2 sequestration.

One councillor did ask specifically about this during the meeting though – about the affect of the planning decision on the UK’s climate budget. He was told that that was NOT a factor in specific planning applications like this and was an issue for government policy makers. It sounded like what he was being told was that the government decided the planning system and the climate commitments and set the overall standards etc. So long as a planning application met those standards then it was not a material concern for the application. I.e. a judicial review of the decision will find that it followed the rules even if the end outcome is that the government will want to put in place those three standards by the CCC for a largescale industry to fit within the climate budget. Ultimately if there is any way to do things ourselves and keep the jobs and taxes in the UK we should all be trying to do so, whether that goes for the hydrocarbons we will use over the next 30-40 years, or steel production, car production etc, food production.

It is fantastic to see the anti fracking movement being pushed into more sensible territory though. Remembering that 5 years ago it was all disaster and catastrophe and earth destroying rhetoric and now its pretty much just down to sensible regulation of low risks and regulation of emissions (as per the CCC) to control climate budget affects. All good.

This judicial review was always going to happen. It doesn’t matter to some if it is successful. Its just part of a slow-it-down and increase-costs strategy, but in the long term it is healthy for the industry as per in the US. Improved regulations are good for everyone and each of these attempts that fails educates councils and councillors as well as setting precedent. All good.

I think you might be underestimating the anti-fracking movement somewhat here, Gary! A judicial review can only be fought on very limited grounds, so don’t think for a minute that people opposed to fracking are in any way happy with the long-term health impacts of fracking, the threat to water supplies, house prices, the tourist industry, thousands of truck movements per well, the problem of disposing of billions of gallons of waste water – people have seen what this has done in every single country where fracking takes place and do not want it to happen here.
For those who think that fracking is the best thing since sliced bread, a final question. Would you be happy having a fracking well 400m from your home?